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P V POLICE HC AK CIV 2006-404-6493 [2006] NZHC 1296 (26 October 2006)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                             CIV 2006-404-6493



                BETWEEN                      P
                                             Plaintiff

                AND   
                      THE COMMISSIONER OF POLICE
                                             Defendant


Hearing:        25 October
2006

Appearances: J Sutton and A Webb for plaintiff
             M Woolford for defendant

Judgment:       26 October 2006


  
                           JUDGMENT OF ALLAN J



Solicitors/Counsel
J Sutton, Manukau, Jeremy@defence.co.nz :
Crown Solicitor Auckland




P V POLICE HC AK CIV 2006-404-6493 26 October 2006

[1]    This is an application for a writ of Habeas Corpus. Ms P, who is
just 14
years old, has been charged with dangerous driving causing death or injury,
unlawfully taking a motor vehicle, and escaping
from custody. She is currently held
in custody in the police cells at the Papakura police station. In this proceeding she
challenges
the lawfulness of her incarceration.


Background


[2]    The charges relate to an incident at Papakura on 4 February 2006. Ms P
was
not charged until August 2006 and first appeared in the Manukau Youth Court on 15
August 2006. At that time she was released
on bail on conditions which included a
7pm-7am curfew to her mother's address. She was also forbidden to consume
alcohol or drugs
and from driving any motor vehicle.


[3]    On 28 August 2006 she commenced a supported bail programme operated by
the NYMD Trust.
Under that programme she received one on one counselling and
was involved in organised activities for 30-35 hours a week. Overnight
she resided
with her mother. That supported bail programme came to an end on 5 October 2006.


[4]    On Tuesday 17 October 2006
she was arrested at 3 am. It has been alleged
that she was at that time in breach of her curfew condition. She was remanded in
police
custody pursuant to s 238(1)(e) of the Children, Young Persons, and Their
Families Act 1989 (the Act), there being no suitable beds
for her either in the
Departmental youth prison, or by way of community placement. Ms P alleges that at
the time of that remand the
Court was provided with no intimation as to her
particular needs, including details of her health.


[5]    On Thursday 19 October
2006, she appeared again in the Youth Court and
was given a community placement under s 238(1)(d) of the Act. Later that day, or
the next day, she absconded from that community placement.

[6]    On Saturday 21 October 2006 Ms P was arrested and placed in the
cells at the
Papakura police station. On Monday 23 October (Labour Day), she appeared at a
special sitting of the Youth Court at
Manukau, and was again remanded in police
custody. That appearance was before Justices of the Peace. On Tuesday 24 October
she appeared
in the Youth Court and was remanded in police custody by a District
Court Judge. Again there were no suitable beds available elsewhere.
I was informed
from the bar that no consideration was given then to Mr P's personal circumstances
as outlined below. Ms P must appear
in the Youth Court each 24 hours until a
suitable bed can be found for her, pursuant to a Child Youth and Family placement.


[7]
   Ms P's health is problematic. Last year she underwent an operation for the
removal of ovarian cysts. She also suffers from serious
eczema which affects large
portions of her body and limbs. Her mental health is fragile. Last month she
attempted suicide. Plainly,
she is a young lady with special problems who deserves
special care.


[8]    There is evidence from Ms P's mother that currently
Ms P does not have
access to certain medication.      Neither, according to her mother, is she eating
properly. For several days
over Labour Weekend, it appears that Ms P did not have
access to showering facilities; neither is she able to take any exercise.
She says:

       I just want to have contact with other people and be in a normal environment
       again.

[9]    On the evidence it seems she desires to be at home with her mother,
and that
her continued detention in police cells is having a deleterious effect on her mental
and physical health.


The application


[10]   Ms P seeks a declaration that she is held in police custody unlawfully and
asks that a writ of Habeas Corpus be issued.
She claims that the unlawfulness of her
detention arises from the defendant's failure to place before the Court material
relevant
to her physical and mental well-being and her overall welfare.               The
defendant's alleged failure is said to be in breach
of:

       a)    Section 4(e) of the Act which provides as one of its objects:

             (e)... the protection of children
and young persons from harm, ill-
                    treatment, abuse, neglect, and deprivation:

       b)    Section 4(d) of the
Act which is aimed at preventing children and
             young persons:

             (ii)        from suffering harm, ill-treatment,
abuse, neglect, and
                         deprivation:

       c)    Section 4(a) of the Act which aims at the establishment and
promotion
             of services and facilities that are:

             appropriate having regard to the needs, values, and beliefs
of
             particular cultural and ethnic groups;

       d)    Section 5(c)(I)and (ii) of the Act which provide:

        
    Subject to section 6 of this Act, any Court which, or person who,
             exercises any power conferred by or under this
Act shall be guided
             by the following principles:

             ...

             (c) The principle that consideration
must always be given to how a
             decision affecting a child or young person will affect--

                       (i) 
  The welfare of that child or young person; and

                       (ii)   The stability of that child's or young person's family,
                              whanau, hapu, iwi, and family group:

       e)    Section 25(i) of the New Zealand Bill of Rights
Act 1990 which
             provides for:

                       (i)    The right, in the case of a child, to be dealt with in a
                              manner that takes account of the child's age.

       f)    Articles 37, 39 and 40 of the Convention
on the Rights of the Child
             (1989).


[11]   As Mr Woolford submitted, these grounds may be summarised in the
following
way:

       ... that the order was wrongly issued, contrary to the requirement to consider
       the interests of the applicant
as a young person under s 5 CYPFA, the
       requirement to protect young persons under s 4 CYPFA, the best interests of
      
the child principle under s 4 of the Care of Children Act 2004, the
       requirement to treat young persons in accordance with
their age under s 25(i)
       of the New Zealand Bill of Rights Act 1990, and parallel rights under the
       Convention on the
Rights of the Child.


Discussion


[12]   The application is governed by the provisions of the Habeas Corpus Act
2001, and in particular
s 14(2) of that Act which provides:

       (2)     A Judge dealing with an application must enquire into the matters of
       fact
and law claimed to justify the detention and is not confined in that
       enquiry to the correction of jurisdictional errors; but
this subsection does not
       entitle a Judge to call into question--

               (a)     a conviction of an offence by a court
of competent
                       jurisdiction, a duly constituted court-martial, or an officer
                       exercising
summary powers under Part 5 of the Armed
                       Forces Discipline Act 1971; or

               (b)     a ruling as
to bail by a court of competent jurisdiction.

[13]   As is observed in Manuel v Superintendent of Hawkes Bay Regional Prison
 [2005] 1 NZLR 161 at [46], s 14(2) mandates a wider consideration of the
underlying questions of fact and law relevant to an applicant's detention
than would
be justified by a purely jurisdictional inquiry. At [49] the Court of Appeal explained
that although apparently regular
warrants will not always be a decisive answer to a
Habeas Corpus application, the procedure will be available only where the
arguments
in issue are properly susceptible to fair and sensible summary
determination. Otherwise they must be held over for evaluation in
judicial review
proceedings.


[14]   Mr Woolford produced a copy of the warrant dated 24 October 2006,
pursuant to which Ms P is
currently remanded in police custody. The warrant is
valid on its face, and Mr Sutton for Ms P did not argue that it was procedurally
defective. However, he claimed that the cells at the Papakura police station were
inherently unsuitable for the detention, from day
to day, of a young person such as
Ms P, and that her plight was exacerbated by the health considerations to which I

have earlier
referred. He submitted that the defendant had failed to advance to the
Court arguments based upon the New Zealand Bill of Rights
Act and the Convention
on the Rights of the Child, with the result that the Court had made a decision which
could not be supported.


[15]   In my view, this application is wholly misconceived for the following
reasons:


       a)     The warrant is derived from
an order made under s 238 of the Act in
              respect of bail. Section 14(2)(b) of the Habeas Corpus Act provides
      
       that in certain circumstances a Judge dealing with an application, must
              inquire into the matters of fact and
law claimed to justify the
              detention, and is not confined in that inquiry to the correction of
              jurisdictional
errors.   But rulings as to bail made by a Court of
              competent jurisdiction are specifically excluded from that wider
ambit
              of inquiry. Accordingly, where a bail ruling is concerned, the Court is
              confined to a narrow inquiry
focused upon jurisdictional error.


       b)     On its face, the warrant establishes that Ms P is detained pursuant to
      
       an order of the Manukau Youth Court made on 24 October 2006
              under s 242(2) of the Act. Such an order is sufficient
authority for
              detention. The defendant has therefore established legal justification
              for detention. There
is nothing to suggest that this is one of the rare
              cases to which the Court of Appeal referred in Manuel [49], where
the
              Court may inquire into challenges on administrative law grounds to
              decisions " ... which lie upstream
of apparently regular warrants".


       c)     The application amounts to an abuse of process in that there exist
            
 statutory procedures which offer ample scope for review of Ms P's
              situation. First, there is her entitlement to a
daily review by the Youth
              Court. There is no reason why Mr Sutton cannot, on her behalf, raise
              before
a Youth Court Judge the personal issues which were advanced
              before me with a view to securing alternative arrangements
for Ms P's
              accommodation. Second, s 241 of the Act provides that both the

                Youth Court and this Court
may, upon application, review an order
                made under s 238. Moreover, a right of appeal is confirmed by s 243.
    
           Finally it is appropriate to mention the fact that Ms P has also
                launched proceedings for judicial review,
upon grounds which largely
                mirror those relied upon in this proceeding. In the judicial review
                proceeding
she seeks declarations that her remand in police custody is
                contrary to law. In that proceeding the Youth Court at
Manukau is
                named as first respondent and the Commissioner of Police is second
                respondent. In launching that proceeding, Mr Sutton has recognised
                (in my view correctly), that if an administrative law remedy is
                available to Ms P, then it ought
to be pursued in judicial review
                proceedings as explained by the Court of Appeal in Manuel [49].


Result


[16]
    Applications under the Habeas Corpus Act are required to be given
precedence " ... over all other matters before the High Court":
        s 9(1).   This
application was filed late in the afternoon of Tuesday 24 October. It was called
before me at 10 am the following
morning.          I made arrangements to hear the
application later that morning, despite the pressures of a very busy Duty Judge
List.
This decision is delivered the following day. The urgency of the matter has dictated
the relative brevity of this judgment.
     Despite the limited time available for
consideration I have nevertheless reached the clear view that for the foregoing
reasons
the application must fail. It is dismissed accordingly.


Postscript


[17]     The failure of this application is not to be taken
as an indication that the
Court is unsympathetic to Ms P's plight. She is one of a number of young people
who are currently remanded
in police custody, simply because insufficient
alternative accommodation is available for them elsewhere. That state of affairs has
attracted significant current public attention. Police cells are inherently unsuitable
for the accommodation of remand prisoners
and especially for young persons, who

like Ms P, have special needs. But that is a matter for the authorities, and perhaps,
for
another Court on another day.




C J Allan J